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(A) Personal Details
Role Name Affiliation
Principal Investigator Prof. Sumita Parmar Allahabad University, Allahabad
Paper Coordinator Prof. Kiran Gupta Delhi University
Content Writer/Author (CW) Dr. Kiran Gupta
Delhi University
Content Reviewer (CR) Prof. Kiran Gupta Delhi University
Language Editor (LE) Prof. Sumita Parmar Allahabad University
(B) Description of Module
Items Description of Module
Subject Name Women’s Studies
Paper Name Women and Law
Module Name/ Title, description
Womens right to succession and inheritance
under muslim, christian, jews and parsi law
Module ID Paper-7, Module-19
Pre-requisites The student is required to be aware of the different religions practised in the country and that they are governed by their own personal laws
Objectives • To make readers aware about the rights
of Muslim, Christian, Jew and Parsi
women to inherit the property from
their relatives.
• To make readers aware about the right
of relatives of the Muslim, Christian,
Jew and Parsi women to inherit their
property.
Keywords • Succession means devolution of
property of the owner on his/her death.
It is of two kinds- Testamentary and
Intestate Succession.
• Testamentary succession means
devolution of property on the death of
the owner as per his desire which he
express during his lifetime by
executing a Will.
• Intestate succession means devolution
of the property on the death of the
owner as per the law applicable to that
person.
• A person is deemed to die intestate in
respect of property of which he/she has
not made a testamentary disposition
capable of taking effect.
• Heir means any person male or female
who is entitled to succeed to the
property of an intestate as per the law
applicable.
Learning Outcome:
• Introduction to the law providing right to the women to inherit property.
• Comparative study of laws related to Succession and Inheritance rights of women.
Contents
1. Introduction
2. Inheritance rights of women under Muslim Law 2.1. Distinct Rule’s of Inheritance under Shia and Sunni Laws 2.2. No Concept of Joint Family and Joint Family Property 2.3. Single Scheme of Succession
2.4. Heritable Property 2.5. Sunni Law of Inheritance 2.6. Shia Law of Inheritance
3. Inheritance rights of women under Christians and Jews laws
4. Inheritance rights of women under Parsis laws 5. Suggestions and Conclusion
Women’s Right to Succession and Inheritance under Muslim, Christian, Jews and Parsi Law
1. Introduction
The law of succession is an offshoot of the concept of private property. In societies adhering
to the concept of private properties, the property must be owned by someone. Property cannot
remain ownerless even for a moment and, therefore, on the death of its owner it must
immediately vest in someone. In this module we are going to discuss the law of succession
which answers the question as to who would be the owner of the property after the death of
its owner. In the earlier module you have already discussed Women Right to Succession and
Inheritance in Hindu Law. Here we will discuss rights of the Muslim, Christian, Jew and
Parsi women to Succession and Inheritance.
The law grants freedom to an individual to bequeath his/her property (though under Muslim
law only one-third of the total property) to any person, a relation or non-relation, or to an
institution, charitable or non-charitable. An individual can make a Will and there under lay
down a scheme of distribution of property taking effect after his/her death. This branch of law
is called testamentary succession.
If an individual dies without making a Will/bequeath of his/her property, expressing his/her
desire as to how the property is going to be devolved and in whom, the law intestate
succession will determine the persons and scheme of devolution of that property. This is
called Intestate Succession. By intestate succession only the relatives of the intestate are
entitled to succeed to his/her property.
The laws dealing with succession and inheritance in India are not uniform. A variety of
different laws are in vogue and their applications depends on multiple factors like the religion
or tribe of the parties, domicile, community, sect, in the community, marital status of the
parties, religion of the spouse, and the type of marriage the parties might have undergone.
Before the advent of British rule, the major laws of Inheritance in India had either their roots
in religion or were deeply influenced by personal laws which owned their allegiance to
religion and custom. The multiplicity of succession laws in India, diverse in their nature,
owing to their varied origin made the property laws even more complex. But one thing was
common in all these laws- all these property laws had been exclusively for the benefit of men
and women had been treated as subservient and dependent on male support.
2. Inheritance rights of women under Muslim Law
Laws of inheritance under Muslim law are derived from the customs and usages prevalent
among the tribes of Arabia before the revelations of Quran, as supplemented and modified
further by the Quranic principles and the Hadis of the Prophet. Contrary to popular belief,
Quranic revelations were not the starting point of Muslim law. It was in existence even prior
to that, but it was systematised, concretised and modified by the revelations and the traditions
of the Prophet. The Indian Muslims are governed by the un-codified Muslim Law of
Inheritance. The Muslim Personal Law (Shariat) Application Act, 1937 expressly directs
courts in India to apply the Muslim law of inheritance to all Muslims. This Statue had the
effect of abrogating all customs relating to personal law and inheritance, which were at
variance with the Quranic law. This was required since, most of the converts to Islam in
India, continued to follow their customary law of inheritance even after conversion.
However, the Muslim law of inheritance in succession doesn’t applied to the property of a
Muslim, if he gets married to a Muslim or a non-Muslim under the Special Marriage Act,
1954, in such cases succession to the property of the parties to the marriage and also to the
issue of such marriage would be governed by the general provisions of inheritance available
under the Indian Succession Act, 1925 and not in accordance with the provisions of the
Muslim law.
Under the customary laws of Arabia male agnates were given paramount importance and the
nearest male agnate’s successes to the entire estate. With respect to other agnates,
descendants were preferred to ascendants, which in turn were preferred to collaterals.
Females and cognates were excluded from inheritance. With the revelation of the Holy
Quran, the basic principle of comradeship in arms was substituted for blood ties. Prophet says
‘there was no bond stronger than the blood tie’ and it became the guiding principle, and,
succession rights were extended to all the blood relations of the intestate, irrespective of their
sex or the sex of the line of the relatives through whom they were related to the deceased
Consequently blood relatives (primarily females and cognates) who were earlier excluded
were called Quranic sharers.
2.1 Distinct Rule’s of Inheritance under Shia and Sunni Laws
Laws relating to Shias and Sunnis with respect to inheritance are different. The difference
arises as to the interpretation and implication of Quranic provision and their incorporation in
already existing system. The Quranic revelations did not abrogate the then existing customs
and usages, which provided the basic framework for laws of inheritance. Quran provided
their modifications by adding to and amending the then existing rules.
The Sunnis kept the old framework intact, such as preference to agnates over cognates, and
superimposed the Quranic principles on this old set-up. The Shias on the other hand, blended
the old rules and the newly laid down rules. They revised the law prevalent under the Arabian
customs and usages, in the light of the newly laid down principles and came out with a
scheme widely different from the one propounded by the Sunnis.
2.2. No Concept of Joint Family and Joint Family Property
Muslim law does not recognise the concept of Joint family as a separate entity or the
distinction between the separate or the joint family property, irrespective of whether the
property was inherited from the father or any other paternal ancestral. The son does not have
right by birth in the fathers property. Exclusive ownership with full powers of alienation is an
essential feature of property ownership under Muslim law.
2.3. Single Scheme of Succession
Muslim law provides a single scheme of succession irrespective of the sex of the intestate. A
woman acquires an absolute right in the property that she inherits, whether as a daughter,
sister or mother, with full powers of alienation. She is permitted to keep her identity and
individuality even after her marriage, and her relations are defined and ascertained in terms of
her own self and not with her respect to her husband or parents unlike under Hindu law. The
woman’s blood relatives are her heirs and the heirs of her husband are not given any
preference.
2.4. Heritable Property
A Muslim is not permitted to bequeath more than one-third of his estate without the consent
of his heirs. So generally, even if he makes a Will, two-third of the property would go by
intestate succession. Where he does not make a Will the entire property would go by intestate
succession.
2.5. Sunni Law of Inheritance
In Sunni law the heirs are divided into three groups:
1. Sharers
2. Residuaries, and
3. Distant Kindred
These groups comprise only of blood relatives with the exception of surviving spouse of the
intestate. The property in the first instance is to be distributed among those sharers who are
entitled to get the property (as explained in 2.1). Sharers are the heirs who were earlier
excluded but were introduced as heirs by the Quranic revelations. Their shares are fixed.
Once the property is distributed among the sharers, and anything is left, this surplus called the
residue goes to the next category called residuaries. When there is no residuary present, the
property passes to the third category which comprises cognates. So long as any heir in the
former two categories is present, the property does not pass to the third category of distant
kindred.
There are five primary heirs, who if present would not be excluded and would invariably
inherit the property. They are:
1. Surviving Spouse
2. Son
3. Daughter
4. Mother/Father
The son is residuary but the rules of inheritance are so designed that he would always inherit
property. Parents also are the primary heirs and inherit along with the children and spouse of
the deceased taking their fixed shares.
Where the surviving spouse is the widower or the husband of the deceased woman, he takes
one-fourth of her property in presence of a child or the child of a son, and in their absence it
is half of the total property. In case a man dies, his widow takes one-fourth of his property in
absence of a child or child of a son, and in their absence it is one-eighth, share. Where more
than one widow is present all of them collectively will take one-fourth or one-eighth as the
case may be and will divide it equally among them.
A daughter inherits as a sharer only in absence of a son. An only daughter takes one-half
share in the property, and if there are two or more daughters they would together take two-
third of the property. In the absence of the son she does not inherit as a sharer but becomes a
residuary along with him and takes a share equal to half of his share.
Father is a primary heir and has a fixed one-sixth share as a sharer which he inherits along
with a child or the child of the son. In their absence he inherits as a residuary and take to the
extent of total property in absence of any other sharer.
Mother’s share is fixed one-sixth in presence of a child or child of a son or when there are
two or more brothers and sisters or even one brother and one sister, irrespective of whether
they were related to the deceased by full blood, consanguine or uterine relationship and her
share is enhanced to one-third in the absence of child or child of a son or where only one
brother or sister may or may not be present.
2.6. Shia Law of Inheritance
Shias divide the entire group of heirs into sharers and residuaries. There is no corresponding
category to distant kindred under Shia law. There are nine sharers three of them are males
and six are females and include the parents, surviving spouse (husband or wife as the case
may be), daughter, full and consanguine sister and uterine brothers and sisters.
On the death of as Shia female, her husband has a fixed one-fourth share in presence of the
lineal descendants and half share in their absence. Under Sunni law, the variation depends
upon the presence or absence of children or any child of a son, but under Shia law, a child or
lineal descendant (Including that of the daughter) would affect the share of the surviving
spouse. Where the deceased is a male, the widow takes one-eighth as a sharer in presence of
lineal descendants and one-fourth in their absence
Both the father and the mother inherit along with the spouse and descendants. Father inherits
as sharer taking fixed one-sixth share in presence of lineal descendants and in their absence
inherits as a residuary. Mother’s share is one-sixth, in presence of lineal descendants.
Under Shia law a daughter in the absence of a son inherits as a sharer. If there is only one
daughter or only one descendant of such daughter, she will take half of the property and if
there are more than two daughters or their descendants they take two-third of the property.
With the son, a daughter inherits as a residuary and takes a share that is equal to half of his
share. The son inherits as residuary.
Though women are awarded a share, their entitlement is half that of the male heirs in the
same category. For example, the daughter’s share is half that of son’s share. Since, the right
of inheritance was introduced at the time when women were not independent and were not
capable of looking after their own financial needs, this prescription the basis of equity rather
than equality. A Muslim man therefore, cannot deprive his wife or daughter of their rightful
share either by forming a Hindu undivided family (HUF) or through a Will which will
deprive women if their share in property. This is viewed as a positive feature unique to
Muslim law.
3. Inheritance rights of women under Christians and Jews laws
In the matters of succession, the Christians and Jews initially being the subjects of British
India were governed either by the provisions Indian Succession Act of 1865 or their own
customary laws. The Indian Succession Act was re-enacted in 1925. It applies to all
communities except Hindu, Budhists, Jains, Sikhs and Muslims. However, for Parsi’s
separate scheme of succession is given under the Act. Persons who marry or whose marriage
is registered under the provision of Special Marriage Act, 1954 are governed by the
provisions of this Act in succession matters unless both of them are Hindus.
Under this Act, widow/widower has equal right to inherit, which is one-third if the intestate
has left any lineal descendants. In the absence of linear descendants abut presence of kindred
of intestate the share of widow or widower is half and the other half goes to those who are
kindred to intestate. In the absence of kindred also widow or widower inherits whole of the
property.
Mother is not entitled to inherit along with the father of the intestate. Mother can inherit
along with brothers and sisters. This provision seems to be highly discriminatory against the
mother. This was a progressive piece of legislation. It grants equal rights to daughters and
sons in parental property. In the absence of sons and daughter their descendants are entitled to
inherit. The spouse of the descendants (i.e. sons and daughters) is/are not an heir. The
concept of ancestral property or coparcenary is also not recognised, therefore providing
greater safeguards for women as compared with Hindu (Hindu Succession Act, 1956) as well
as Muslim and Parsi (until it was amended in 1991) legal systems.
Many communities continued to follow the pre-conversion laws regarding succession even
after conversion. Most Christian communities followed the rule of coparcenary or joint Hindu
family property and continued to practice the discriminatory laws which prohibited daughters
from inheriting the property. A leading case in this regard, Abraham v. Abraham, (1863) 9
MIA 195, decided by the Privy Council in 1863, was concerned with the issue of succession
to the property of a Roman Catholic who had subsequently converted to the Protestant sect.
The dispute was between the widow and her husband’s brother. The brother pleaded that
although they had converted to Christianity, they continued to follow the Hindu law of
coparcenary. The Privy Council laid down rule regarding conversion and held such a property
as joint family property. The matter gain came up before the court, subsequent to the coming
of Indian Succession Act, 1865, in Tellis v. Saldanha, (1886) ILR 10 Mad 69, which held that
after the enactment of the Indian Succession Act, the Christian converts are governed by its
provisions. Again this view was overruled by the decision of Bombay High Court in Francis
Ghosal v. Gabri Ghosal, (1907) 31 Bom. 25, which held that Christians are governed by the
Hindu law of coparcenary.
The law of Cochin and Travancore was particularly discriminatory against the daughters.
Under the Travancore Christian Succession Act, 1910, the right of daughters was limited to
one-fourth of the share of the son or Rs. 5000/-, whichever was less. Similarly, under the
Cochin Christian Succession Act, 1922, the share of daughters was one0third of the son or
Rs. 5000/-, whichever was less. Property in excess to this would be inherited by sons and if
there were no sons, then the nearest male relatives. In 1957, the Cochin and Travancore High
Court affirmed that Christians in the region are not governed by the India Succession Act and
the discriminatory statutes enacted by the princely states apply to them. In 1974, a single
judge of the Madras High court in Solomon v. Muttiah, (1974) 1 MLJ 53, adopted a
progressive stand and ruled that the Travancore Succession Act stood repealed after the
Independence and Christians in the region are not governed by this discriminatory statute, but
by the Indian Succession Act, 1925, which was later overruled by Madras High Court in D.
Chelliah Nadar v. Lalitha Bai, AIR 1978 Mad 66, which reaffirmed that Christians in Tamil
Nadu are governed neither by the Progressive provisions of Indian Succession Act nor by the
Hindu Succession Act, but by the un-codified Hindu customary law and under this law, the
son was the sole heir to the father’s property to the exclusion of the daughter.
The controversy was finally resolved and rested in a ruling given by the Supreme Court in the
Mary Roy v. State of Kerala, AIR 1986 SC 1011, where the court struck down the
discriminatory provisions on a technical ground that after Independence, the laws enacted by
the erstwhile princely states which were not expressly saved have been repealed. The court
declared unconstitutional those provisions of the Travancore Syrian Christian Act, 1916 and
the Cochim Succession Act, 1921, which limited the right of Syrian Christian woman to her
paternal property. In John Vallamatton v. Union of India, AIR 2003 SC 2902, the Supreme
Court declared unconstitutional, the provisions of Section 118 of the Indian Succession Act,
1925 which required that no Indian Christian who had living relatives, could leave his
property for religious and charitable purposes unless provided for or by a Will, a year before
his death.
4. Inheritance rights of women under Parsis laws
The Parsi immigrants came to India to escape religious persecution by the Arab conquerors of
Persia. They adopted the customs of the place where they had first taken shelter. A
Panchayat, i.e. an assembly of elders, administered decisions in civil and criminal matters
while personal matters were governed by decisions of the priests. Due to existence of a
parallel system of administration in the Mofussil and the Presidency areas, Parsis in the
former areas were governed by their customary laws while those in the latter areas were
governed by English Laws. In a complete contrast to the law of Mofussil Parsis under which
women were excluded from inheritance initially and had only a right of maintenance, under
the English law, the widow of an intestate had an absolute share to the extent of one-third of
his property and the daughter was treated on par with the son. This diverse situation was
brought to an end by the Parsi Intestate Succession Act, 1865, that framed a uniform scheme
for all Indian Parsis and increased the share of a widow and a daughter to a specific absolute
ownership rather than a bare claim of maintenance, which was further amended in 1925, 1937
and then post independence on 1991, effecting major changes in the inheritance laws of
Parsis making them more equitable and gender just.
Prior to 1991, the Shares of female heirs were half of the share of their male counterpart, i.e.
daughter was entitled to half of son’s share and mother was entitled to half of father’s share,
though all of them were entitled to inherit simultaneously as co-heirs. The 1991 amendment
has removed this discrimination against women and made the share of daughter equal to that
of a son and that of the mother to the father. Now, surviving spouse and children (both son
and daughter) receive equal shares and, mother and father receive equal shares which is equal
to half the share of each child. As per this law not only the surviving spouse of the intestate is
an heir but also the spouse of predeceased and predeceased daughter and other lineal
descendants are also entitled to inherit.
5. Suggestions and Conclusion
Laws alone cannot make justice available to citizens in society. Seeking equality in an
unequal society is a task demanding concerted action on the part of the individuals, the
community, government and the judiciary on a continuing basis. This is what women as a
class must realise in their struggle for equal justice in the democratic republic of India.
Personal laws discriminating between men and women, violates the fundamental rights and
negates equality of status, as spelled out in the Preamble of the Constitution.
Suggestion:
I. The constitutional directive of Article 44 of the Constitution should be expeditiously
implemented by adoption of Uniform Civil Code.
II. Keeping in mind the conditions of widow, The Indian Succession Act should
incorporate restrictions on the right of testation, similar to that prevailing under
Muslim Law.
III. Legislative measures to bring Christian women of Kerala under the Indian Succession
Act.
IV. Indian Succession Act should be extended to Goa and Pondicherry respectively, in
order to undo the relegation of women in the matters of succession and to undo the
inferior position to which Christian women are relegated by not being considered as
full owners of property.
V. There is need for legislation in Muslim law to give equal share of property to the
widow and daughter along with sons.
VI. Legal recognition to be given to the economic value of the contribution made by the
wife through household work for purposes for demanding ownership of matrimonial
property, instead of continuing the archaic test of actual financial contribution.
VII. On divorce or separation, the wife should be entitled for atleast one-third of the assets
acquired at the time of and during the marriage.
VIII. Under Christian law, mother should be treated as a co-heir along with the father.
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